June 24, 2011

Stringent Groundwater Discharge Permitting Requirements Coming

Changes Are Likely to Adversely Impact Most Commercial Property Owners in Washington, D.C.
Holland & Knight Alert
Amy L. Edwards

The Washington, D.C. (“District”) government is suddenly making it difficult to get routine construction dewatering permits and authorization to discharge groundwater from sumps and drains into either the combined sewer overflow (CSO) system or the municipal separate storm sewer system (MS4). These procedural and regulatory changes are likely to cause significant permitting delays and to dramatically increase groundwater treatment costs for both temporary and permanent discharges into either the CSO or the MS4 systems. These changes are in addition to expected changes in the District’s stormwater regulations, which will require new development to retain either a 1.2 inch (private site) or 1.7 inch (federal site) rainfall event on site.

These pending changes are evident in two ways:

1) Permits for Discharges Into the CSO System

DC Water recently issued a proposed rule (20 DCMR 004362, May 20, 2011) that would require users discharging into the CSO system (directly or indirectly) to obtain permits for all discharges of non-wastewater (including discharges of stormwater as well as groundwater from basement sumps and foundation drains).

  • The proposed rule does not appear to have any type of “grandfathering” provision, so the proposed permitting requirements seem to apply to owners of existing buildings as well as new construction.
  • There are both general and specific prohibitions on the types of substances that can be discharged into the CSO system, including limits on total toxic organics (such as benzene and tetrachloroethene, or perc) and metals (such as arsenic, lead, cadmium and copper).
  • DC Water would be allowed to require a user to connect to the MS4 system at the user’s expense. If the MS4 system is more than 250 feet from a commercial property, the user will need to obtain DC Water’s authorization in writing prior to discharging into the CSO system.
  • Failure to have a permit would be a violation of the law and could subject the discharger to significant penalties.
  • The permits would not be assignable, so prospective purchasers of buildings with sumps or drains that discharge into the CSO system would need to obtain their own permits prior to transfer of title.
  • The permits must be renewed every five years.
  • The proposed discharge limits need to be examined to be sure that they are achievable and can be attained in a cost effective manner. Naturally occurring metals have been a problem with discharges into the MS4 system.
  • The type of permit that will be required will depend in part upon the volume of water being discharged; if more than 25,000 gallons per day, the discharger would be considered to be a significant industrial user subject to more stringent requirements.
  • The proposed rule will generally limit temporary discharge authorization (TDA) permits to two years and will assess a sanitary sewer service fee (the amount is unknown) based upon the measured quantity of water being discharged under the TDA permit.

Comments on the proposed rule were due June 20, 2011, but DCBIA has requested, and will most likely be given, an additional 30 days to provide comments.

2) Permits for Discharges Into the MS4 System

The District Department of the Environment (DDOE) is trying to determine what type of permit, and what discharge limits, should apply to construction dewatering and permanent discharges of groundwater and stormwater into the MS4 system. Its confusion about what type of permit might be appropriate, as well as what discharge limits are necessary, has caused substantial permitting delays (i.e., more than six months) and substantial costs (i.e., more than $800,000 in anticipated costs for temporary dewatering during construction) for routine construction projects.

  • Developers have been told that they may need to apply for a construction general permit, or a multi-sector general permit for industrial discharges, because neither EPA (the permitting authority) nor DDOE (the “certifying” authority) is certain what type of permit is most appropriate for either the temporary or permanent discharge of groundwater into the MS4 system. EPA is also apparently exploring the possibility of developing a separate general permit specifically for discharges of groundwater from basement sumps and foundation drains.
  • DDOE has not issued any proposed rules regarding what discharge limits are appropriate, but has instead determined, by administrative fiat, that users discharging into the MS4 system must meet the same discharge limits that the District must meet under its MS4 permit (which is expected to be reissued by EPA with more stringent limitations any day now). However, there is no legal basis for doing so, since a discharge into the MS4 system is not a discharge into “waters of the United States.” In addition, DDOE has not issued a notice of proposed rulemaking or offered the public an opportunity to comment on what the appropriate discharge limits should be. The limits that DDOE is attempting to impose would require developers to clean up naturally occurring substances, such as iron, to extremely high standards at substantial cost. DDOE has also ignored the effect of commingled streams and dilution while discharges are moving through the MS4 system.

Now Is the Time to Discuss Solutions

The District’s efforts to impose inflexible permitting requirements and to impose incredibly stringent discharge limits upon groundwater collected in building foundations and sumps will have a very deleterious impact upon development in the District. The time is now for the development community to organize around finding common sense and cost effective solutions.

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